[Federal Register Volume 84, Number 132 (Wednesday, July 10, 2019)]
[Rules and Regulations]
[Pages 32839-32841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14346]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / 
Rules and Regulations  

[[Page 32839]]



DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 701

[Docket No. FSA-2019-0006]
RIN 0560-AI46


Emergency Conservation Program

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Agriculture Improvement Act of 2018 (2018 Farm Bill) 
amended provisions of the Emergency Conservation Program (ECP). This 
rule implements those changes to ECP and makes additional minor 
technical amendments to the ECP regulations. The Farm Service Agency 
(FSA) is amending regulations to add wildfires as an eligible natural 
disaster, expand eligibility requirements, increase the maximum payment 
amount certain participants may receive, provide cost-share for fence 
repair and replacement, and provide certain cost-share payments more 
expeditiously than was previously authorized under ECP. In addition, 
this rule makes minor changes related to the Emergency Forest 
Restoration Program (EFRP).

DATES: Effective July 10, 2019.

FOR FURTHER INFORMATION CONTACT: Shanita Landon; telephone: (202) 690-
1612; or email: shanita.landon@fxsp0;usda.gov. Persons with 
disabilities who require alternative means for communication should 
contact the USDA Target Center at (202) 720-2600 (voice).

SUPPLEMENTARY INFORMATION:

Background

    Through ECP, FSA provides payments to farmers and ranchers to 
rehabilitate farmland damaged by certain natural disasters and to 
implement emergency water conservation measures in periods of severe 
drought. ECP provides cost-share assistance to farmers or ranchers to 
rehabilitate farmland damaged by wind erosion, floods, hurricanes, or 
other natural disasters as determined by the Deputy Administrator. 
Section 2403 of the 2018 Farm Bill (Pub. L. 115-334) made changes to 
the ECP provisions. For ECP, the 2018 Farm Bill amended the 
Agricultural Credit Act of 1978 (16 U.S.C. 2201), by adding wildfires 
as an eligible natural disaster for which payments may be provided to 
eligible producers. The changes to the regulations include:
     Adding an additional category to natural disasters to be 
consistent with the changes to the ECP provisions;
     Making a portion of the cost-share payments for the repair 
or replacement of fencing available to eligible producers prior to the 
producer carrying out the repair or replacement;
     Increasing the maximum payment amount a producer can 
receive under ECP;
     Establishing a maximum payment percentage that a producer 
who is a socially disadvantaged or beginning farmer or rancher may 
receive; and
     Making minor technical changes to the existing ECP and 
EFRP regulations.

Definitions

    FSA is relocating definitions applicable to EFRP into the general 
definitions section in Sec.  701.2. The defined terms are ``Commercial 
forest land,'' ``Nonindustrial private forest land,'' and ``Owners of 
nonindustrial private forest land.''

Maximum Cost Share Percentages

    Prior to this rule, a qualified limited resource farmer or rancher 
that participated in ECP may have received reimbursement of up to 90 
percent of the total allowable cost. The 2018 Farm Bill expands this 
maximum cost-share to include socially disadvantaged and beginning 
farmers and ranchers, while in all cases limiting total payment for a 
single event to an amount not to exceed 50 percent of the agricultural 
value of the land.
    This rule continues the maximum cost-share payments that can be 
made to a farmer or rancher who is not a limited-resource, socially 
disadvantaged, or beginning farmer or rancher, to no more than 75 
percent of the total allowable cost, not to exceed 50 percent of the 
agricultural value of the land.

Maximum ECP Payments per Person or Legal Entity

    Prior to this rule, a person or legal entity was limited to a 
maximum ECP cost share of $200,000 per person or legal entity, per 
disaster event. This rule will increase the maximum per person or legal 
entity payment limitation to $500,000.

Advanced Payment Option for Fences

    The 2018 Farm Bill authorizes a set aside of funds to provide that 
25 percent of funding is to be used for the repair or replacement of 
fencing. The rule also adds Sec.  701.128 for advance payments of up to 
25 percent of the cost of repairing or replacement of fencing before 
the repair or replacement is carried out. In the event this cost share 
assistance is not spent within 60 calendar days of being issued, the 
participant will be required to refund the cost-share payment.

EFRP Maximum Financial Assistance

    The rule revises Sec.  701.226 to clarify that an EFRP participant 
will not receive more than 75 percent of the total cost of the 
emergency measures carried out by the participant; and, that the 
$500,000 maximum applies for a person or legal entity, per natural 
disaster. In addition, there is no provision for a waiver of the above-
described EFRP limits for financial assistance.

Effective Date and Notice and Comment

    The Administrative Procedure Act (APA; 5 U.S.C. 553) provides that 
the notice and comment and 30-day delay in the effective date 
provisions do not apply when the rule involves specified actions, 
including matters relating to benefits. This rule relates to benefits 
and thus falls within that exemption.
    This rule is not a major rule under Congressional Review Act. 
Therefore, FSA is not required to delay the effective date for 60 days 
from the date of publication to allow for Congressional review.
    Therefore, this rule is effective on the date of publication the 
Federal Register.

Executive Orders 12866, 13563, 13771, and 13777

    Executive Order 12866, ``Regulatory Planning and Review,'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
direct agencies to assess all costs and benefits of

[[Page 32840]]

available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasized the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. The requirements in 
Executive Orders 12866 and 13563 for the analysis of costs and benefits 
apply to rules that are determined to be significant. Executive Order 
13777, ``Enforcing the Regulatory Reform Agenda,'' established a 
federal policy to alleviate unnecessary regulatory burdens on the 
American people.
    The Office of Management and Budget (OMB) designated this rule as 
not significant under Executive Order 12866, ``Regulatory Planning and 
Review,'' and therefore, OMB has not reviewed this rule and an analysis 
of the costs and benefits is not required under either Executive Orders 
12866 or 13563.
    Executive Order 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' requires that in order to manage the private costs 
required to comply with Federal regulations that for every new 
significant or economically significant regulation issued, the new 
costs must be offset by the elimination of at least two prior 
regulations. As this rule is designated not significant, it is not 
subject to Executive Order 13771. In a general response to the 
requirements of Executive Order 13777, USDA created a Regulatory Reform 
Task Force, and USDA agencies were directed to remove barriers, reduce 
burdens, and provide better customer service both as part of the 
regulatory reform of existing regulations and as an ongoing approach. 
FSA reviewed this regulation and made changes to improve any provision 
that was determined to be outdated, unnecessary, or ineffective.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally requires an agency to prepare a regulatory analysis 
of any rule whenever an agency is required by APA or any other law to 
publish a proposed rule, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule is not subject to the Regulatory Flexibility Act 
since FSA is not required to publish a notice of proposed rulemaking 
for this rule.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations 
for compliance with NEPA (7 CFR part 799). This rule includes changes 
mandated by the 2018 Farm Bill and discretionary technical amendments 
that are administrative in nature. Accordingly, the discretionary 
provisions of this action are covered by the Categorical Exclusion, 
found in 7 CFR 799.31(b)(2)(iii) for minor amendments or revisions to 
previously approved actions and Sec.  799.31(b)(3)(i), for the issuance 
of minor technical corrections to regulations. No Extraordinary 
Circumstances (Sec.  799.33) exist. As such, the implementation of the 
discretionary technical amendments provided in this rule does not 
constitute a major Federal action that would significantly affect the 
quality of the human environment, individually or cumulatively. 
Therefore, FSA will not prepare an environmental assessment or 
environmental impact statement for this regulatory action and this rule 
serves as the environmental screening documentation of the programmatic 
environmental compliance decision for this federal action.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened Federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal financial assistance and direct Federal 
development. For reasons specified in the final rule related notice 
regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the 
programs and activities in this rule are excluded from the scope of 
Executive Order 12372.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, ``Civil 
Justice Reform.'' This rule would not preempt State or local laws, 
regulations, or policies unless they represent an irreconcilable 
conflict with this rule. Before any judicial actions may be brought 
regarding the provisions of this rule, the administrative appeal 
provisions of 7 CFR parts 11 and 780 are to be exhausted.

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule do not have any 
substantial direct effect on States, on the relationship between the 
Federal government and the States, or on the distribution of power and 
responsibilities among the various levels of government, except as 
required by law. Nor does this rule impose substantial direct 
compliance costs on State and local governments. Therefore, 
consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 13175 requires Federal agencies 
to consult and coordinate with Tribes on a government-to-government 
basis on policies that have tribal implications, including regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian Tribes, on the relationship between the Federal Government 
and Indian Tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.
    FSA has assessed the impact of this rule on Indian Tribes and 
determined that this rule does not, to our knowledge, have Tribal 
implications that requires Tribal consultation under Executive Order 
13175. If a Tribe requests consultation, FSA will work with the USDA 
Office of Tribal Relations to ensure meaningful consultation is 
provided where changes, additions, and modifications identified in this 
rule are not expressly mandated by the 2018 Farm Bill.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and Tribal governments, or the 
private sector. Agencies generally need to prepare a written statement, 
including a cost benefit analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local, or Tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost

[[Page 32841]]

effective or least burdensome alternative that achieves the objectives 
of the rule.
    This rule contains no Federal mandates, as defined in Title II of 
UMRA, for State, local, and Tribal governments or the private sector. 
Therefore, this rule is not subject to the requirements of sections 202 
and 205 of UMRA.

Federal Assistance Programs

    The title and number of the Federal Domestic Assistance Program in 
the Catalog of Federal Domestic Assistance, to which this rule applies 
is 10.054--Emergency Conservation Program.

Paperwork Reduction Act

    In the accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520), this rule does not change the information collection 
approved by OMB under OMB control number 0560-0082.

E-Government Act Compliance

    FSA are committed to complying with the E-Government Act, to 
promote the use of the internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.

List of Subjects in 7 CFR Part 701

    Disaster assistance, Environmental protection, Forests and forest 
products, Grant programs--agriculture, Grant programs--natural 
resources, Reporting and recordkeeping requirements, Rural areas, Soil 
conservation, Water resources, Wildlife.

    For the reasons discussed above, FSA amends 7 CFR part 701 as 
follows:

PART 701--EMERGENCY CONSERVATION PROGRAM, EMERGENCY FOREST 
RESTORATION PROGRAM, AND CERTAIN RELATED PROGRAMS PREVIOUSLY 
ADMINISTERED UNDER THIS PART

0
1. The authority citation for part 701 continues to read as follows:

    Authority:  16 U.S.C. 2201-2206; Sec. 101, Pub. L. 109-148, 119 
Stat. 2747; and Pub. L.111-212, 124 Stat. 2302.

Subpart B--Emergency Conservation Program

0
2. In Sec.  701.2, add definitions for ``Commercial forest land'', 
``Nonindustrial private forest land'', and ``Owners of nonindustrial 
private forest land'' in alphabetical order.
    The additions read as follows:


Sec.  701.2  Definitions.

* * * * *
    (b) * * *
    Commercial forest land means forest land with trees intended to be 
harvested for commercial purposes that has a productivity potential 
greater than or equal to 20 cubic feet per year of merchantable timber.
* * * * *
    Nonindustrial private forest land means rural commercial forest 
lands with existing tree cover, or which are suitable for growing 
trees, that are owned by a private non-industrial forest landowner as 
defined in this section.
    Owners of nonindustrial private forest means, for purposes of the 
EFRP, an individual, group, association, corporation, Indian Tribe, or 
other legal private entity owning nonindustrial private forest land or 
who receives concurrence from the landowner for making the claim in 
lieu of the owner; and, for practice implementation, the one who holds 
a lease on the land for a minimum of 10 years. Owners or lessees 
principally engaged in the primary processing of raw wood products are 
excluded from this definition. Owners of land leased to lessees who 
would be excluded under the previous sentence are also excluded.

0
3. Amend Sec.  701.103 as follows:
0
a. Revise section heading;
0
b. In paragraph (a), remove ``or other'' and add ``wildfire, or other'' 
in its place; and
0
c. In paragraph (b), remove ``wind'' and add ``wildfire, wind'' in its 
place.
    The revision reads as follows:


Sec.  701.103  Eligible losses, objective, and payments.

* * * * *

0
4. Amend Sec.  701.126 as follows:
0
a. In paragraph (a), remove ``lesser of the participant's total actual 
cost or of the'';
0
b. Revise paragraph (b); and
0
c. In paragraph (c), remove ``shall'' and adding ``will'' in its place.
    The revision reads as follow.


Sec.  701.126  Maximum cost-share percentage.

* * * * *
    (b) However, notwithstanding paragraph (a) of this section, a 
producer who is a limited resource, socially disadvantaged, or 
beginning farmer or rancher that participates in ECP may receive up to 
90 percent of the total allowable costs expended to perform the 
practice as determined under this part.
* * * * *


Sec.  701.127   [Amended]

0
5. Amend Sec.  701.127 by removing ``$200,000'' and adding ``$500,000'' 
in its place.

0
6. Add Sec.  701.128 to read as follows:


Sec.  718.128  Repair or replacement of fencing.

    (a) With respect to a payment to an agricultural producer for the 
repair or replacement of fencing, the agricultural producer has the 
option of receiving up to 25 percent of the projected payment, 
determined based on the applicable percentage of the fair market value 
of the cost of the repair or replacement, as determined by FSA before 
the agricultural producer carries out the repair or replacement.
    (b) If the funds provided under paragraph (a) of this section are 
not spent by the agricultural producer within 60 calendar days of the 
date on which the agricultural producer receives those funds, the funds 
must be returned to FSA by a date determined by FSA.
    (c) Payments made under this section are subject to the 
availability of funds.

0
7. Amend Sec.  701.203 as follows:
0
a. Revise the section heading; and
0
b. In paragraph (a), remove ``on or after January 1, 2010,''.
    The revision reads as follow.


Sec.  701.203  Eligible measures, objectives, and assistance.

* * * * *


Sec.  701.205   [Amended]

0
8. Amend Sec.  701.205 paragraph (a)(2) by removing ``, which occurred 
on or after January 01, 2010,''.


Sec.  701.226   [Amended]

0
9. Amend Sec.  701.226 as follows:
0
a. In paragraph (b), remove ``A person,'' and add ``A person, or legal 
entity,'' in its place and remove ``disaster'' and add ``natural 
disaster'' in its place; and
0
b. Remove paragraph (c).

Steven Peterson,
Acting Administrator, Farm Service Agency.
[FR Doc. 2019-14346 Filed 7-9-19; 8:45 am]
 BILLING CODE 3410-05-P